117 S.W. 966 | Tex. Crim. App. | 1908
Lead Opinion
The appellant was indicted in the District Court of Wood County, Texas, for the offense of burglary. On trial he *564 was found guilty as charged, and his punishment assessed at confinement in the penitentiary for two years.
The facts show without dispute that appellant sometime in September, 1906, entered the store of I.G. Bromberg Company, in the town of Mineola, at night, and took therefrom a lot of merchandise of various kinds. This was not seriously disputed in the testimony, and the general fact of the entry by appellant and the taking by him of the goods is fixed substantially beyond any doubt. The defense was that appellant at the time of the burglary was suffering from such character of mental disorder or disease as rendered him incapable of distinguishing between the right and wrong of the act in question and this insanity was that form known as kleptomania, which is defined as an irresistible impulse to steal. This issue was submitted to the jury by the court in the charge: "Among other defenses made in this case is insanity created and produced by a diseased condition of the mind — Every man is presumed to be sane until the contrary appears to the satisfaction of the jury trying him — He is presumed to entertain, until this appears, a sufficient degree of reason to be responsible for his acts and to establish a defense on the ground of insanity it must be proven by a preponderance of the evidence that at the time of committing the burglary (if you have found he did) the defendant was laboring under such defect of reason, from disease of the mind, as not to know the nature or quality of the act he was doing, or if he did know that, he did not know that he was doing wrong — that is, that he did not know the difference between the right and wrong as to the particular act charged against him.
"You are to determine from the evidence in this case the matter of insanity, it being a question of fact controlled, so far as the law is concerned, by the instructions herein given you.
"Now, if the defendant has shown by a preponderance of the evidence that at the time of the alleged burglary the defendant was laboring under such defect of reason, from disease of the mind, as not to know the nature or quality of the act of burglary as herein defined, or if he did know that, he did not know he was doing wrong — that is, that he did not know the difference between the right and wrong as to the particular act charged against him, you will acquit the defendant upon the defense of insanity." In addition to this charge, counsel for appellant requested the court to give the following special charge:
"Gentlemen of the jury, you are further charged that in order for the defendant to be guilty of burglary in entering the storehouse of I.G. Bromberg Co., if you find he did so enter said house, he must have been moved by, and must have entered for the specific purpose of committing the crime of theft; and if he entered the said house without the specific intent, at the time, of committing the crime of theft, as the crime has been defined to you in the main *565 charge, then he will not be guilty. And in this connection you are further charged that though he may have entered the said house, but at the time of making the entry, if he did so, he was suffering from any character of mental disorder or disease that rendered him incapable of distinguishing between the right and the wrong of the act, or, in other words, rendered him incapable of forming and following a sane intent to commit the crime of theft, then he will not be guilty and you will acquit.
"You are further charged that kleptomania, which is defined as an irresistible impulse to steal, is, when it arises from a diseased condition of the mind, recognized as a species of insanity, or a manifestation of insanity, and the person suffering from kleptomania, arising from a diseased condition of the mind, would not be capable of forming the specific intent to steal as the crime has been defined by the statute.
"You are further charged in connection with the above propositions that while the defendant is supposed to have been sane at the time of the entry into the house, if he did so enter, still, if you find from the evidence that the defendant was suffering from any mental disorder prior to and at the time of the commission of the offense, if he did it, then the presumption of his sanity would be overcome, and it is the duty of the State to show by the evidence, beyond a reasonable doubt, that the defendant was sane enough, at the time of making the entry, if he did so, to form the specific intent to steal, or, in other words, to know the difference between the right and the wrong involved in his act." We think the latter clause of this charge, if not, indeed, other portions of it, was erroneous. Analyzed, it is to the effect that while in law the appellant is supposed to have been sane at the time of entering the house, yet if the jury found from the evidence that he was suffering from any mental disorder prior to and at the time of the commission of the offense, this would overcome the presumption of his sanity, and that it is the duty of the State to show by the evidence beyond a reasonable doubt that the defendant was sane enough at the time of making the entry to form the specific intent to steal. The vice and fallacy of this charge, as we conceive, is that it in effect, in its last analysis, instructs the jury that while the presumption of law is that defendant is sane, yet if the defendant shows any form of insanity or mental disorder that then the burden shifts to the State. The vice of this position is that if the evidence shows and same is credited by the jury, that appellant is insane, he is entitled to be acquitted, and it would be error to instruct the jury that insanity, being shown by the defendant, that any burden thereupon devolves upon the State. The true rule is stated and better stated in the charge of the court. That where defendant is arraigned charged with an offense, the law presumes him to be sane and the burden rests upon the appellant to show by a preponderance of the evidence, facts constituting mental *566 disorder or insanity. With this instruction the jury is in position to pass intelligently upon the matter in issue. We think the special charge should not have been given.
Complaint is made of that portion of the general charge of the court which reads as follows: "Among other defenses made in this case is insanity created and produced by a diseased condition of the mind." It is complained that insanity is itself a diseased condition of the mind, and not a result of the diseased condition of the mind, and this definition was calculated to and did mislead the jury to the prejudice of the defendant's interests in that it left the jury to infer that the defendant might have a diseased condition of the mind and yet not be insane. We think this complaint not substantial for the reason that under the instructions of the court taken altogether the test was made as to whether or not the appellant did or did not "know the nature or result of the act he was doing, or if he did know that he did not know he was doing wrong" — that is, he did not know the difference between the right and wrong as to the particular act charged against him.
As further ground for reversal appellant complains of the objectionable language used by the district attorney in his closing address to the jury. It appears by bill of exceptions that among other things, the district attorney made to the jury the following remarks: "I want a verdict of guilty in this case, because I do not want you to set a precedent in this county for turning people loose on a plea of insanity. If you turn this defendant loose, then those lawyers, like Stafford Geddie, will be pleading insanity for everybody that is prosecuted, and if you are going to turn this defendant loose, you had just as well tear down your courthouse and burn your docket." Exception was taken to this language, but no charge was requested from the court withdrawing or correcting same. We have frequently held that where the remarks of prosecuting attorneys in argument were excepted to but no charge in respect to them is asked, no error is presented. The only exception to this rule is in a case where the remarks of the prosecuting attorney are of such grave character as obviously to prejudice appellant's case before the jury. Lancaster v. State, 36 Tex.Crim. Rep.[
The next ground to be considered is the sufficiency of the evidence to support the verdict. There was testimony given by R.J. Smith, the father of appellant, Will Smith, his brother, Arch Alexander, his brother-in-law, and Ernest Smith, his uncle, to certain facts as to the disposition and mental capacity of appellant on which the alleged insanity is based. No other witness was produced by appellant, except certain physicians and experts touching his mental capacity and Prof. B.A. Stafford, a teacher by profession, who lives and had lived at Mineola several years. It appears from the testimony of appellant's relatives that he had a severe attack of typhoid pneumonia when very small; that he was very irritable; that he was given to falling asleep almost anywhere; would frequently leave his work and go away from home for two or three days, and when returning he would be unable to give an account of his whereabouts during this time; that his mind did not seem to be developed, and that he could never be made to realize the difference between right and wrong; that he had for years been in the habit of stealing things, including tools, plows, ropes, rubber hose, and a number of other things, and when found with same seemed to know or care nothing about them and would evidence no shame and would not use the articles stolen after he had them in his possession. It was developed on cross-examination, however, that appellant engaged in various kinds of manual labor; that he worked at a saw mill for several months as a ratchet setter, fired the engine sometimes, and that setting ratchets and firing engines were very responsible positions; that the ratchet setter has to be very apt and accurate; that he has to notice and observe figures. It also appears that appellant had been away from home — to Dallas, and probably elsewhere, at work; that he earned during a part of this time as much as $1.50 a day; that he was a tolerably good machine man; that at one time he remained at such work in Dallas for two or three months; that this was as long as two or three years before the burglary. It also appeared that appellant made his own trades and bought his own clothing. Two physicians, Dr. D.A. York and Dr. E.W. McCammish, both testified with more or less definiteness that basing their opinion on the testimony given by the other witnesses in the case that they were of the opinion that appellant was so mentally unsound as to be incapable of recognizing the right or wrong of the act charged against him. It will be noticed that while he had resided in Mineola all his life, where he had worked for some considerable time, that no witnesses not related to him were produced upon the trial to testify as to his mental unsoundness. We can well understand how the jury would have attached much importance to this fact. While the testimony of appellant's relatives make a strong showing of insanity, the *569 jury in passing on this question must and naturally would attach some importance to this fact, and still greater importance, no doubt, to the fact that other persons who must have known appellant, and who, from their acquaintance with him, would have had some opportunity for observation, were not produced. The law presumes and presumed appellant sane. Just what weight of testimony is required to overturn this presumption, it may be difficult in every case to determine. The jury who heard the evidence were not convinced that the legal presumption was rebutted and disproved by the testimony produced. The learned district judge, who tried the case and heard the testimony, and had opportunities for observing the witnesses, their manner and appearance on the witness stand, has overruled appellant's motion; nor can we see from the record that he was in error in so doing. We do not feel that as presented we should interfere.
Finding no error in the proceedings of the court below, it is ordered that the judgment of conviction be and the same is hereby affirmed.
Affirmed.
Addendum
The argument filed in this case by counsel for appellant has convinced us that the disposition heretofore made of the appeal was erroneous, and that the argument of counsel for the State was such a grave invasion of the rights of appellant and so violative of the rules of fair discussion as, under the facts, not only to justify but require a reversal.
As stated in the original opinion, the appellant made what seems to us to be a very strong showing of insanity. The facts of the burglary were proven beyond doubt. The only defense for all practical purposes was that of insanity. Therefore, it was of the highest importance that this issue should have been, as it was, fairly submitted to the jury, and that in the discussion thereof there should have been no such departure from the rules of fair debate as would have illegally imperiled or weakened the defense. The particular matter we have in mind is, perhaps, not as fully stated in the original opinion as may seem desirable. The State's attorney made the statement to the jury, as set out in the bill, as follows: "I want a verdict of guilty in this case, because I do not want you to set a precedent in this county for turning people loose on a plea of insanity. If you turn this defendant loose, then these lawyers, like Stafford and Geddie will be pleading insanity for everybody that is prosecuted, and if you are going to turn this defendant loose you had just as well tear down your courthouse and burn your docket." Counsel for the defendant excepted while the district attorney was *570
making said remarks on the ground that same were out of the record and were unfair to the appellant and were prejudicial to his cause, but the bill recites the court did not stop the district attorney, nor in any way interfere with the argument being made by him, nor rebuke him. Appellant's counsel requested a charge withdrawing the first sentence of the above remarks, and instructing the jury that the same were improper. There was no instruction requested in respect to the remaining part of the language above quoted. The portion in respect to which the instruction related was not of a grave character, and no instruction was requested in respect to the only portion of the argument that could, as we believe, in the nature of things, have prejudiced appellant's cause. The bill further recites that shortly after the use of the language above complained of and while the district attorney was continuing his address to the jury and continuing the line of argument as set out in his remarks above quoted, that among other objectionable remarks made to and in the hearing of the jury as an inducement to them to render a verdict of guilty in this case, the following statement: "Convict this defendant, and if you want to recommend executive clemency — if you want to pardon — come to me and I will help you get him pardoned." It is further recited that at once appellant's counsel objected and excepted to this speech on the ground that same was an argument outside of the record and prejudicial to appellant's cause and that the court failed to stop the district attorney, or say anything to him or to take any notice of said language or of the appellant's objections thereto, except to turn to appellant's counsel, and in a low tone tell him to prepare a special charge embracing the objectionable language and he would give the charge to the jury. A charge was prepared and given by the court. In approving this bill of exceptions the court allows the same with the statement that when the language last above quoted was complained of, he was writing his charge and when counsel for appellant called his attention to it, the district attorney at once began another line of argument. It is contended by counsel for appellant that in the light of the entire record, this argument was so obviously hurtful and prejudicial as that notwithstanding the instruction given by the court, the judgment should be reversed. It is urged, and such seems to be the fact, that this statement was not provoked by anything said by them, and the further statement seems clear, that it was out of the record and highly improper. So, the question recurs, was it of such gravity as, in the light of the entire case, obviously or reasonably to have prejudiced appellant's cause? Construing it in the light of the former statement that he did not wish the jury to set the precedent of acquitting defendants on the ground of insanity, it was susceptible to the construction of a plea for a conviction not on the ground that appellant was guilty, but for fear of the precedent and that to induce, if not coerce, the jury into rendering a verdict of guilty, he *571
holds out to them the promise to aid in securing a pardon. In this case the jury gave the appellant the lowest penalty known to the law. This was some evidence that the issue of insanity must have been seriously considered. May not the speech of counsel for the State have induced an agreement on a verdict of guilty by holding out to the jury the hope, whether true or false, that he would aid in securing a pardon, and that as the chief law officer of the State such aid would be effective? Under the precedents which we have carefully examined, we believe in the light of the entire record, that we can not but hold, on further reflection, that this argument was violative of the rules of fair discussion, and probably, if not certainly, hurtful and injurious to the rights of appellant. In the recent well considered case of McKinley v. State, 52 Tex.Crim. Rep., Judge Davidson discusses a matter somewhat similar to this, in which he uses the following language: "In making his closing speech the county attorney used the following language: `Gentlemen of the jury: I want you to convict this defendant on the evidence in this case. It is true he testifies in his own behalf that he did not sell whisky to the prosecuting witness, but the prosecuting witness says that he did, and it is true the prosecuting witness is a negro, but I would believe the negro before I would believe a man like the defendant, who has time and again paid the penalty for the violation of the people's local option law, and goes manifestly without any principle around over the country boot-legging whisky in open violation of our local option law; and that is the kind of a man that is being tried before you.' The bill recites these remarks were not supported by the evidence in the case; that they were immaterial and irrelevant, outside of the record, and were erroneously recited by the county attorney. Exception was reserved. It is further shown that the court instructed the jury not to consider such remarks, but it is claimed that such instruction did not withdraw the prejudice created thereby from the minds of the jury. There was no evidence in the record that appellant had been previously convicted for violations of the local option law, nor to the effect that he had been boot-legging whisky over the country. Appellant had not put his character at issue. Permitting attorneys for the prosecution to dwell in argument on the character of a defendant when not in issue, in a way calculated to prejudice him before the jury, is error. See Turner v. State, 39 Tex.Crim. Rep.; Pollard v. State, 33 Tex.Crim. Rep.. Nor is vituperative and abusive argument permissible, and a conviction obtained in this manner is unlawful, and where the record on appeal shows such was permitted to prejudice the accused before the jury, the Appellate Court should not hesitate to set it aside. See Crawford v. State, 15 Texas Crim. App., 501; and Parks v. State,
This was a case of misdemeanor. This is a felony case. See also Puryear v. State, 50 Tex.Crim. Rep.; Taylor v. State,
The motion is granted and the judgment of conviction set aside and the cause remanded.
Reversed and remanded.
